Wooldridge v. Bryan

• Decision Date: 16 March 1925
• Docket Number: 23959,23960
• Citation: 270 S.W. 658,307 Mo. 234
• Parties: JAMES R. WOOLDRIDGE, Appellant, v. P. TAYLOR BRYAN, Administrator of Estate of ANNIE W. RAPLEY, Appellant
• Court: Missouri Supreme Court

270 S.W. 658

307 Mo. 234

JAMES R. WOOLDRIDGE, Appellant, v. P. TAYLOR BRYAN, Administrator of Estate of ANNIE W. RAPLEY, Appellant

Nos. 23959, 23960

Supreme Court of Missouri

March 16, 1925

Appeal from St. Louis City Circuit Court; Hon. Charles W Rutledge, Judge.

Affirmed.

Lubke & Lubke for claimant.

(1) The plaintiff by undisputed evidence showed an express agreement between his mother and himself to pay for her board and lodging and to reimburse him for outlays for nurses and attendants and the services of a chauffeur, as well as the repeated acknowledgments of this contract by his mother. Having obtained verdicts and judgments for the sums paid for nurses and attendants, he was also entitled to verdicts for the value of the board and lodging and the sums paid to the chauffeur. The verdicts in favor of the plaintiff on the second, third, fourth and fifth counts of the sixteenth claim are correct, both under the evidence and the law. Burt v Gabbert, 174 Mo.App. 521; Hartley v. Hartley's Estate, 173 Mo.App. 18; Hyde v. Honiter, 175 Mo.App. 583; Biggerstaff v. Riley, 192 Mo.App. 92; Stone v. Troll, 134 Mo.App. 308; Rouden v Heisler's Estate, 219 S.W. 691; Cole v. Fitzgerald, 132 Mo.App. 17. (2) Defendant's Instruction 20 is erroneous. It ignores the proof of the express contract on the part of the deceased to pay for her board and lodging and is therefore misleading. It should not have been given. Botts v. Railroad, 180 Mo.App. 368; Cytron v. Transit Co., 205 Mo. 692; Stone v. Hunt, 94 Mo. 475; State ex rel. v. Central Coal & Coke Co., 270 Mo. 645. (3) Defendant's Instruction 19 is erroneous in that it required the credits to be endorsed on the notes by the deceased in order to make them an acknowledgment of an existing indebtedness, whereas it is sufficient if the endorsement of the credits be made at the direction of the deceased, which the proof showed. Gardner v. Early, 78 Mo.App. 346; Haver v. Schwyhart, 39 Mo.App. 303; Wright v. Wayland, 188 S.W. 928. (4) The trial court erred in refusing to allow the plaintiff to explain his letter to Washington Byler. At most this letter was an admission against interest and subject to explanation. Buick v. Insurance Co., 194 Mo.App. 529; Casella v. Insurance Co., 175 Mo.App. 130; Chamberlain v. Iba, 181 N.Y. 486. (5) The indorsement of the credits on the first six notes sued on having been made at the direction of the deceased by a third party in her presence, the fact of the payments made on the notes having been admitted by the deceased, these notes were not barred by the Statute of Limitations. Gardner v. Early, 78 Mo.App. 346; Haver v. Schwyhart, 39 Mo.App. 303; Wright v. Wayland, 188 S.W. 928; Henry v. Devinney, 101 Mo. 378. (6) The court properly refused defendant's instruction. The notes on their face import a consideration. There is no evidence that at the time they were executed the deceased lacked mental capacity sufficient to enter into contracts. Besides, want of consideration is a defense which must be proved by the defendant. Home Bldg. & Loan Assn. v. Barrett, 141 S.W. 723. (7) By statute a check is made a bill of exchange drawn on a bank payable on demand. R. S. 1919, sec. 971. Presentment for payment is not necessary to charge the maker. R. S. 1919, sec. 856. A check being a negotiable instrument imports a consideration, and even if the drawer be dead before the check is presented for payment to the bank upon which it is drawn, the liability of the drawer to pay is in no wise altered, notwithstanding the death of the drawer revoked the bank's authority to pay. Fisher v. Bagnell, 194 Mo.App. 581.

Leland A. Wind for administrator.

(1) The indorsement of credits on the notes constituting claims 1 to 6, both inclusive, is not sufficient evidence of such payments to avoid the bar of the Statute of Limitations, not being signed by the deceased, nor in her handwriting. It is the payment and not the indorsement of credits or other admissions not signed by her which would prevent the running of the statute. Elzer v. Prior, 87 Mo.App. 161; Henry v. Devinney, 101 Mo. 378; Regan v. Williams, 185 Mo. 620, 631; Meffert v. Lawson, 233 S.W. 37. (2) Under the testimony showing the confidential and intimate family relationship between claimant and the deceased, together with the doctor's testimony regarding her mental and physical condition, the court should have given the instruction asked by defendant, requiring the jury to find that defendant received full value of all of the notes and that they represented an actual indebtedness due and unpaid before finding for the claimant on any of the thirteen notes. (3) A check is not a cause of action without proof that it was presented for payment to the bank on which it was drawn and payment refused. Adams v. Early, 28 Mo. 162; Myers v. Bank, 72 Mo.App. 4. (4) The letter written by claimant to Washington Byler under date of November 11, 1911, shows conclusively that he had no intention of charging deceased or her estate for the board and lodging of her attendants, and when a plaintiff flatly denies the chief element which constitutes his cause of action he cannot recover. Crowley v. Dagley, 174 Mo.App. 566. (5) The verdict of the jury was manifestly against the evidence and the weight of the evidence, and inasmuch as the testimony was entirely in the form of depositions this court is in a better position to weigh the evidence than the trial court was. The jury should have been instructed to find for the defendant on the entire sixteenth claim, as requested by the defendant. Clow v. Wormington, 206 S.W. 415; Smith v. Davis Estate, 230 S.W. 670; Burt v. Gabbert, 174 Mo.App. 527; Morrison v. Morrison, 197 Mo.App. 527; Crowley v. Dagley, 174 App. 566. (6) Letters of a deceased, even though not against her interest, are admissible to disprove material admissions alleged to have been made by her against her interest.

Graves, J. All concur, except Atwood, J., not sitting.

OPINION

GRAVES

This case originated in the Probate Court of the City of St. Louis. Plaintiff is the son of Annie W. Rapley deceased, who left an estate in the city of St. Louis, and filed a claim in said court against this estate. The claim was based upon thirteen notes, two checks, and the following stated account:

"Mrs. Annie Washington Rapley To James R. Wooldridge, Dr.

"To Board and lodging from Oct. 1st,

1916, to Aug. 30, 1919, at $ 45.00

per mo.

$ 1,560.00

"To Wages paid Miss Blanche Bean as

nurse and attendant, Nov. 17, 1916,

to April 4th, 1917, at your request

300.00

"To board of Miss Bean at $ 30.00 per

mo., furnished at your request

138.00

"To wages paid Miss Lillian Frazier

as nurse and attendant, Apr. 4,

1917, to Aug. 21, 1919, at your re-

quest.

1,695.00

"To board of Miss Frazier at $ 30.00

per month, furnished at your re-

quest

857.00

"To wages paid Joe Thomas as chauf-

feur, June 4, 1919, to Aug. 20th,

1919, at your request.

141.28

"$ 4,691.28"

The said probate court allowed the plaintiff the full amounts of the several items of his claim, and the administrator appealed to the circuit court. Upon trial in the circuit court before a jury the plaintiff had a verdict for all of the items of his claim, except items one and five of the stated account, supra. Judgment was entered upon this verdict and both sides have appealed.

In a way the whole judgment in favor of plaintiff is challenged in the appeal by the administrator. The plaintiff challenges it upon the two items mentioned, supra, wherein the jury disallowed these items by their verdict. In point five of defendant's brief, the counsel for said appellant gives a resume of his real complaints thus:

"The court erred in refusing to give peremptory instructions to find for the defendant on each of the following claims:

"1. The first six notes bearing endorsements of interest credits dated May 11, 1911.

"2. The two checks bearing date of April 15, 1918, and November 4, 1918, for two hundred dollars each, respectively.

"3. The claims for moneys paid to Blanche Bean for wages and board.

"4. The claim for moneys paid to Miss Frazier for wages and board."

There are also complaints as to instructions, and the admission of evidence. This outlines the case, and the details are left to the opinion.

I. The claimant in this case is a man of considerable means, and the son of deceased, Annie W. Rapley. He has lived in Tennessee for many years, as we gather from the evidence. Some years before her death the deceased, who owned some considerable property (real estate) in St. Louis and Sedalia, made her home in Tennessee. For some years she lived in the Marion Apartments, paying at all times her own expenses. From statements she made to divers witnesses, this son always helped her financially, when her rents failed her, or occasion required, and she gave him notes. These cover a long period of years. So long was the period of years that the first six or seven would be barred by the Statutes of Limitation, but for credits on each of them in 1911.

There is no question as to the bona fides of the notes, but it is denied that the payments of interest in 1911 were in fact not made and the notes were therefore outlawed by the statute. The testimony shows that in 1911, at or about the date of these credits, the claimant came to the room where his mother, Miss Jennie Boyd and a Mrs. Sudberry were sitting and that he handed to his mother some papers, and said to her that he had marked, in pencil, the amount of interest upon each note, and for her to put such payment in ink upon the notes. The mother did not have her glasses, and directed Mrs Sudberry to enter the credits in ink upon the notes, and the evidence further shows that the credits were in the handwriting of Mrs. Sudberry. Then the...